Cook County State's Attorney Anita Alvarez is taking an unusual step: Arguing that the state's ban on same-sex marriage is unconstitutional.

The state's attorney says it is unprecedented, that she and Cook County Clerk David Orr agree with the parties who are suing him, and they have no plans to argue against them in court. That is because the clerk says he believes same-sex marriage should be legal in the state and he would like to issue marriage licenses to same-sex couples.

A little more than a year ago same-sex couples lined up outside Orr's office waiting to get a license for a civil union. For many, after years of hoping and lobbying for some legal status for their relationships, this was an emotional time.

It was a step forward, but not quite far enough, according to some who want to be able to legally marry. And the clerk agrees.

"We are clearly admitting that people are being discriminated against," Orr said.

Two lawsuits filed by gay marriage supporters against the clerk say the state's ban on gay marriage is unconstitutional and he should grant them marriage licenses.

But, rather than fight the suits, Orr and his lawyer, Cook County State's Attorney Anita Alvarez, have filed a response saying they agree with the complaint and that gay marriage should be allowed under state law.

"We both believe the existing statute is unconstitutional," said Orr.

And, if the Illinois Supreme Court agrees with them, gay marriage would become legal in the state without the legislature ever voting on it.

"If they find the statute violates the Illinois constitution they can do that," said Alvarez.

Jaime Garcia and Darryl Rizzo have been together for 11 years. Last June they were among 33 couples who took part in a civil union ceremony in Millennium Park. They say it was nice, but something was missing. That's why they joined a lawsuit against Orr calling on him to issue marriage licenses.

"We think about our daughter who is four, I mean she recognizes our commitment to each other and to our family, and we hope that the state will also recognize that commitment," said Rizzo.

With no one to fight the lawsuit in court, Peter Breen of the Thomas More Society says he plans to ask the court to allow him to intervene so he can defend the state's constitution -- and against gay marriage.

"These sorts of issues are left to legislatures for a reason," Breen said. "Courts are not meant to do end-runs around the will of the people."

Breen says it's no coincidence the couples from all around the state filed the suits in Cook County because they expected the politicians in Chicago to support gay marriage. But he says the other 101 counties in the state would oppose it and he wants to make sure they are represented in court.